Winston v. United States of America (INMATE 3)

Filing 32

MEMORANDUM OPINION AND ORDER: It is ORDERED as follows: 1. The Opinion and Order and Final Judgment (Doc. 29 , 30 ) are VACATED. 2. Plaintiffs Objection (Doc. 31 ) is OVERRULED. 3. The court adopts the 21 Recommendation of the Magistrate Judg e. 4. Wintsons motion to vacate, set aside, or correct sentence under 28 U.S.C. 2255 (Doc. 1 ) is DENIED. 5. This case is DISMISSED with prejudice. Final Judgment will be entered accordingly. Signed by Honorable Judge W. Harold Albritton, III on 8/10/2017. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
ANTHONY LAMAR WINSTON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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) CIVIL ACTION NO. 3:15-CV-433-WHA
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[WO]
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MEMORANDUM OPINION and ORDER
This case is before the court on a Recommendation of the Magistrate Judge entered on June
13, 2017 (Doc. #21), and the Plaintiff’s Objection thereto (Doc. #31).
The Plaintiff was given until June 29, 2017 to file objections to the Recommendation of
the Magistrate Judge. Several motions for additional time in which to file an objection were filed,
and granted by the court. The final extension of time for objection was until July 28, 2017. No
timely objection was filed on that date, and on August 3, 2017, the court adopted the
Recommendation, dismissed the case with prejudice, and entered final judgment. (Doc. #29 and
#30).
On August 7, 2017, the Plaintiff filed a an objection (Doc. #31). Although, untimely, the
court will consider the objection and the previous Order and Opinion and Final Judgment are due
to be vacated.
After de novo review of the objection and the file in this case, the court finds the Objection
to be without merit.

In his Objection, Winston reasserts his claim that because his trial counsel, Richard K.
Keith (“Keith”), “charged him a low fee,” counsel put forth little effort on Winston’s behalf and
coerced him into pleading guilty and into not withdrawing his guilty plea. The Magistrate Judge’s
Recommendation noted that at the sentencing hearing held on August 20, 2012—after a five-day
continuance for Winston to consider the matter—Winston stated in open court that he did not want
to withdraw his guilty plea and that he wished to go forward with sentencing. There is no
indication in the record that Winston felt pressured into standing by his guilty plea, Winston points
to no instances of coercion by Keith, and points to no evidence that a better plea agreement was
obtainable. Winston fails to show professionally unreasonable performance by Keith or any
resulting prejudice.
Winston also asserts that attorney Keith rendered ineffective assistance by failing to
conduct an independent investigation of his criminal history and by advising the district court at
the initial sentencing hearing that he did not know about Winston’s criminal history. As noted in
the Magistrate Judge’s Recommendation, the Magistrate Judge explicitly advised Winston during
the change of plea hearing that his sentence might differ from any estimate he had been given, then
asked Winston if he understood this. Winston replied in the affirmative. It was clarified to
Winston before he pleaded guilty that the guidelines estimate he had been given—120 months—
was not binding and was only an estimate based on less-than-complete information. Moreover,
when the PSI was completed, showing Winston’s criminal history to be substantially greater than
was contemplated when the 120-month estimate was made, the district court afforded Winston the
opportunity to withdraw his guilty plea, but Winston chose not to. Winston fails to demonstrate
that Keith’s investigation of his criminal history was professionally unreasonable.

More

obviously, he also demonstrates no prejudice. Winston was aware when pleading guilty that his

offense level and criminal history category could be higher than estimated by Keith. And when
this proved to be the case, he stood by his guilty plea.

Winston further objects that Keith rendered ineffective assistance of counsel by giving
“prevaricated testimony” to the district court regarding his advice to Winston about his potential
sentence; by failing to ensure that his receipt of a 120-month sentence was incorporated into the
plea agreement; and by failing to adequately advise him of his options should he withdraw his
guilty plea. Winston fails to demonstrate any prejudice regarding these allegations. The record
reflects Winston was aware when pleading guilty that he could receive a sentence longer than the
120-month estimate, and he chose not to withdraw his guilty plea after learning he would receive
a much longer sentence. Winston asserts that Keith did not discuss the terms of the plea agreement
with him. However, at the change of plea hearing, Winston affirmed in open court that he had
discussed the plea agreement with Keith and that he understood its terms. Keith did not perform
deficiently in failing to ensure Winston’s receipt of a 120-month sentence was incorporated into
the plea agreement:

“Contrary to Winston’s suggestion, the Government never agreed to

recommend a 120-month sentence; that is why the term was not incorporated into the plea
agreement. Winston also suffered no prejudice, because he would never have received a 120month sentence once the PSI was completed. Under the sentencing guidelines, as reflected in the
PSI, Winston had a base offense level of 32 and a criminal history category of VI, which, after a
two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a), yielded a
sentencing range of 168 to 210 months for the drug count. It was not ineffective assistance of
counsel for Keith to fail to secure a sentence for Winston that it was not possible for Winston to
get.” Finally Winston maintains he did not know about his options if he chose to withdraw his
guilty plea and that Keith misled him into believing his only option if he withdrew the plea was to

go to trial. However, Winston was not misled. The district court informed Winston at the August
15, 2012 sentencing hearing that if he withdrew his guilty plea, the case would proceed to trial.
Winston points to no evidence indicating the Government was willing to renegotiate a plea
agreement if he withdrew his guilty plea. Winston fails to show he did not understand his options,
or that Keith misrepresented those options to him.

Winston objects, reasserting his claim that Keith rendered ineffective assistance by
allowing the Government to withhold evidence about his substantial assistance from a downward
departure motion under U.S.S.G. § 5K1.1 and by failing to argue more forcefully for a departure
bigger than the one-level departure he received.

As noted in the Magistrate Judge’s

Recommendation, although Keith did not argue at sentencing that Winston was entitled to a bigger
departure based on his assistance, he did argue, albeit unsuccessfully, for a four-level downward
variance based on Winston’s criminal history overstating the seriousness of his past criminal
conduct and based also on Winston’s having lost out on a bigger § 5K1.1 departure because of his
pretrial misconduct. In his affidavit addressing this claim, Keith notes that, “while out on pre-trial
release, Winston was caught using marijuana and crack cocaine, and actually tipped off DEA
targets that he was supposed to be setting up for prosecution.” Moving for a § 5K1.1 departure
was discretionary with the Government and was not included in the plea agreement. That the
Government requested only the one-level § 5K1.1 departure was not a matter within Keith’s
control. Further, Winston’s own misconduct diminished his chances of obtaining a bigger
departure. Winston cannot demonstrate that he was prejudiced by Keith’s failure to advocate
strongly enough for a further departure.

Winston also contends Keith was ineffective for failing to tell the district court about a
promise the Government allegedly made at a proffer meeting not to convert into drug amounts
seized money subject to forfeiture if Winston convinced his girlfriend, Jacquana Shealey, not to
make a claim on the money (over $7,000). The PSI did not convert the seized money into drug
amounts. Keith states that, at sentencing, he did not challenge the drug amount actually attributed
to Winston in the PSI because he was concerned that such a challenge would lead the Government
to convert the seized money into drug amounts, leading to even more drugs being attributed to
Winston. As stated by the Magistrate Judge in the Recommendation, Keith maintains he was
unaware of any promise by the Government not to convert the money to drug amounts in exchange
for Shealey’s relinquishing any claim to the money.

Apart from his own unsubstantiated

assertions, Winston presents no evidence that the Government made any such promise at a proffer
meeting. Winston wholly fails to demonstrate that, had he contested the drug amount listed in the
PSI (excluding from consideration any additional amounts based on conversion of the seized
money), he would have succeeded and would have received a lesser sentence. Therefore, he fails
to show he was prejudiced by the Government’s purported breach of promise. He cannot
demonstrate prejudice resulting from Keith’s allegedly deficient performance.
Winston also claims that Keith rendered ineffective assistance by failing to consult with
him during the sentencing stage of the proceedings about the possibility of entering a new plea
agreement. The district court informed Winston at the August 15, 2012 sentencing hearing that if
he chose to withdraw his guilty plea, the case would proceed to trial. Winston can point to no
evidence indicating the Government would renegotiate a plea agreement if he opted to withdraw
his guilty plea. Consequently, Winston fails to demonstrate he was prejudiced by Keith’s alleged
failure to consult with him about entering a new plea agreement.

Winston contends Keith rendered ineffective assistance by failing to tell him he would not
be granted a third point for acceptance of responsibility under U.S.S.G. § 3E1.1(b). As stated in
the Recommendation, the written plea agreement provided that the Government would not oppose
Winston’s request for a two-level reduction for acceptance of responsibility under U.S.S.G. §
3E1.1(a), but also stated that the Government would not seek or request a “third point” of reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(b). At the change of plea hearing, after
the terms of the plea agreement were outlined in open court by counsel for the Government,
Winston stated that he understood what the terms of the agreement were. Winston also affirmed
in open court that he had discussed the plea agreement with Keith and that he understood its terms.
The record does not support Winston’s claim that he was unaware he would not receive a third
point for acceptance of responsibility under § 3E1.1(b). Further, as Keith points out in his affidavit
addressing this claim, Winston damaged his chances of receiving the full three points for
acceptance of responsibility when, while on pretrial release, he was caught using marijuana and
crack cocaine and tipping off other drug dealers that they were DEA targets. While not specifically
arguing at sentencing for the third point reduction under § 3E1.1(b), Keith attempted,
unsuccessfully, to obtain a four-level downward variance based partly on Winston’s missing out
on possible sentence reductions because of his misconduct. Winston fails to demonstrate that
Keith’s actions regarding the third point reduction under § 3E1.1(b) were professionally
unreasonable or that he was prejudiced by Keith’s allegedly deficient performance.
Finally, Winston reasserts his claim that Keith rendered ineffective assistance by failing to
seek a proffer document before his second proffer meeting with the Government regarding the
evidence that could be used against him. Winston maintains that Keith’s failure to request a proffer
document before the second proffer meeting opened the door for the Government to use his

statements against him in “violation of the privilege against self-incrimination.” As stated in the
Magistrate Judge’s Recommendation, at Winston’s first proffer meeting, Winston, along with
Keith and counsel for Government, signed a proffer agreement. That agreement guaranteed that
statements Winston made would not be used against him and that by proffering he would not be
deemed to have waived his privilege against self-incrimination. It is clear from the face of the
agreement that these guarantees extended to any subsequent interviews, not just the original
interview. There was no need for Keith to seek another proffer document before Winston’s second
proffer meeting. Further, Winston’s conviction and sentence were based on evidence obtained
from sources separate from his proffers and did not result from information he proffered to the
Government when Keith was his counsel. Winston can point to nothing he said in his proffer
meetings that was used to obtain his conviction or aggravate his sentence.
and it is ORDERED as follows:
1.

The Opinion and Order and Final Judgment (Doc. #29, 30) are VACATED.

2. Plaintiff’s Objection (Doc. #31) is OVERRULED.
3. The court adopts the Recommendation of the Magistrate Judge.
4. Wintson’s motion to vacate, set aside, or correct sentence under 28 U.S.C. §2255 (Doc.
#1) is DENIED.
5. This case is DISMISSED with prejudice.
Final Judgment will be entered accordingly.

Done this 10th day of August, 2017.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE